R. v. Conception

R. v. Conception
Collection
Supreme Court Judgments
Date
2014-10-03
Neutral citation
2014 SCC 60
Report
[2014] 3 SCR 82
Case number
34930
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 34930
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Conception, 2014 SCC 60, [2014] 3 S.C.R. 82
Date: 20141003
Docket: 34930
Between:
Brian Conception
Appellant
and
Her Majesty The Queen, Person in Charge of the Centre for Addiction and Mental Health and Person in Charge of the Mental Health Centre Penetanguishene
Respondents
- and -
Attorney General of Canada, Attorney General of Quebec, Criminal Lawyers’ Association of Ontario and Mental Health Legal Committee
Interveners
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.
Joint Reasons for Judgment:
(paras. 1 to 44)
Concurring Reasons:
(paras. 45 to 133)
Rothstein and Cromwell JJ. (LeBel, Abella and Gascon JJ. concurring)
Karakatsanis J. (McLachlin C.J. and Moldaver and Wagner JJ. concurring)
r. v. conception, 2014 SCC 60, [2014] 3 S.C.R. 82
Brian Conception Appellant
v.
Her Majesty The Queen,
Person in Charge of the Centre
for Addiction and Mental Health and
Person in Charge of the Mental Health
Centre Penetanguishene Respondents
and
Attorney General of Canada,
Attorney General of Quebec,
Criminal Lawyers’ Association of Ontario and
Mental Health Legal Committee Interveners
Indexed as: R. v. Conception
2014 SCC 60
File No.: 34930.
Hearing: October 17, 2013.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
Re‑hearing ordered: July 30, 2014.
Judgment: October 3, 2014.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.
on appeal from the court of appeal for ontario
Criminal law — Mental disorder — Dispositions by a court or review board — Treatment disposition — Accused declared unfit to stand trial — Hearing judge issuing a “forthwith” treatment order without consent of treating hospital — Whether a court may make a disposition order directing that treatment begin immediately even though the hospital or treating physician does not consent to that disposition — Whether the consent requirement relates to the timing of carrying out the order or just to the treatment itself — Criminal Code, R.S.C. 1985, c. C‑46, ss. 672.58 , 672.62(1) (a).
Constitutional law — Charter of Rights and Freedoms — Right to life, liberty and security of the person — Criminal law — Mental disorder — Treatment disposition — Whether requiring hospital’s consent for all provisions of the treatment disposition would infringe accused’s right to procedural fairness — Whether treatment disposition provisions of Criminal Code are unconstitutionally vague or arbitrary — Charter of Rights and Freedoms, s. 7 — Criminal Code, R.S.C. 1985, c. C‑46, ss. 672.58 , 672.62(1) (a).
C was charged with sexual assault. When he appeared in court, he was in a psychotic state and was declared unfit to stand trial. Crown counsel recommended a treatment order. The Crown stated that a bed would be available in a facility at one hospital six days after the hearing. The hearing judge issued a “forthwith” treatment order, specifying C be treated at a second hospital or its “designate” (preferably the facility at the first hospital). Court services delivered C to the first hospital and left him in a hallway. The hospitals appealed this decision. The Court of Appeal held that the hearing judge erred by acting on the basis that the consent requirement of the Criminal Code provision relating to treatment had been satisfied. The Court of Appeal also determined that the applicable provisions of the Criminal Code (ss. 672.58 and 672.62(1) (a)) engage the rights to liberty and security of the person guaranteed under s. 7 of the Charter , but do not violate the principles of fundamental justice.
Held: The appeal should be dismissed.
Per LeBel, Abella, Rothstein, Cromwell and Gascon JJ.: Consent is required for the disposition order in its entirety, not simply to the treatment aspect of it. A court may not make a disposition order directing that treatment begin immediately if the hospital or treating physician does not consent to that disposition unless the situation is a rare case in which a delay in treatment would breach the accused’s rights under the Canadian Charter of Rights and Freedoms and an order for immediate treatment is an appropriate and just remedy for that breach.
The hospital or person in charge of treatment must consent to all the terms of a disposition ordering treatment and, if there is no consent, the order cannot be made. The starting point is the text of the provisions in their grammatical and ordinary sense according to the modern principle of statutory interpretation. The Criminal Code provides that no court shall make a “disposition” under s. 672.58 without the consent of the hospital or person in charge of treatment. “Disposition” is a technical term, used throughout Part XX.1. While a disposition ordering treatment may be referred to as a “treatment order” in colloquial language, there is no such thing provided for in the Criminal Code . It is clear that a “disposition” under s. 672.58 necessarily has a temporal aspect both as to its beginning and its ending and may include other conditions that the court considers it appropriate to impose. Thus consent is required to the disposition which the court makes under s. 672.58 , not simply to certain aspects of it. This is supported by the meaning of the word “consent” and the context in which it is used in these provisions. Where the Criminal Code intends to differentiate between consent to treatment and consent to a disposition order, it does so expressly.
An order under s. 672.58 is extraordinary in that it directs that treatment of an accused be carried out without the accused’s consent and by necessary implication, it authorizes medical personnel to carry out that treatment against the accused’s wishes. The provisions recognize the importance of the treatment provider’s clinical judgment, not only as to the particular treatment but as to the location at which it is to be carried out. This broad understanding of the scope of the required consent is reinforced by the practical realities of providing involuntary treatment to potentially dangerous individuals. The timing of a treatment order for an accused who has been found unfit to stand trial must be an element of the hospital’s consent because, from the hospital’s perspective, the time at which treatment is to be provided is inextricably linked to the hospital’s ability to provide treatment safely and effectively. The ability of the hospital to administer the suitable treatment is inextricably linked to whether it has the facilities and personnel available to do so. Timing is therefore an essential element of suitability and not distinct from it. Consent under s. 672.62(1) of the Code must therefore include timing.
The consent requirement does not deprive the accused of procedural fairness and is not unconstitutionally vague or arbitrary. Any potential violation of s. 7 rights would result from the exercise of the hospital’s discretion to withhold consent in a particular case, and is not inherent in the section itself. No such breach was established in this case. That said, a judge proposing to make a disposition is entitled to consider, in an appropriate case, whether a refusal of consent will have the effect of unconstitutionally limiting the accused’s rights to life, liberty or security of the person in a fashion that does not accord with the principles of fundamental justice. If so persuaded, the judge would be entitled to consider whether ordering an immediate admission would constitute an appropriate and just remedy for that breach.
Per McLachlin C.J. and Moldaver, Karakatsanis and Wagner JJ.: The treatment order regime in Part XX.1 of the Criminal Code is intended to bring mentally ill accused persons to the cognitive threshold required to proceed to trial. A court’s discretion under s. 672.58 to order treatment to render an individual fit for trial is subject to stringent safeguards and timelines. Given the potential for involuntary medical treatment, one such safeguard is the requirement for hospital consent set out in s. 672.62(1) (a). However, when the consent requirement is read in its proper statutory context, it is clear that hospital consent is not required to all the terms and conditions of the treatment order. The hospital’s consent is required only to the treatment itself. Bed shortages and patient wait lists do not permit a hospital to refuse, or defer, consent. Consent may be withheld only for medical reasons and cannot be withheld on the basis of efficient management of hospital resources.
Treatment orders seek to render the accused fit to stand trial, in order to protect the rights to a timely trial and procedural fairness, as well as to safeguard the public interest in accused persons standing trial. They also serve to ensure that the accused’s liberty is minimally impaired. While the medical and legal interests of accused persons are both at stake, the ultimate purpose of treatment orders is to protect the legal interests of the accused.
Interpreting the provisions in light of (1) the purposes of Part XX.1, the treatment order regime and the consent requirement, (2) the scheme of strict judicial control and oversight with strict timelines, and (3) the appeal and automatic stay provisions, the requirement for hospital consent relates only to a hospital’s willingness to deliver a particular treatment. Requiring hospital consent to all terms of a treatment “disposition” would effectively give them a broad veto over whether a treatment order could be issued, without regard to the accused’s legal interests. If hospitals may refuse consent, or dictate the timing of a treatment order, for any reason, including its internal operations and wait lists, it would be a significant derogation from Part XX.1’s comprehensive scheme of judicial controls and tight timelines. Only judges will be able to assess the risks that would flow from failing to immediately treat an unfit accused because many of the greatest dangers will result not from the “medical urgency” of this treatment as seen by hospitals, but rather from the risks that such an accused would face in jail. Furthermore, the automatic stay of a treatment order upon appeal by the institution would be meaningless if the treatment order could not be issued absent hospital consent to all its terms and conditions. Rather, the scheme provides a stay and contemplates a hospital appeal precisely because certain “conditions” of the treatment order ― including the timing ― are decided by the court.
Thus while bed shortages are not a basis for the hospital to refuse consent, they are part of the circumstances in which the judge exercises her discretion in deciding the start date of a treatment order. If the hospital is concerned about bed unavailability, or its ability to safely carry out the treatment immediately, the discussion about triage can take place before the judge. In setting the start date for treatment, the judge will consider bed shortages, but she does so along with the liberty, security and procedural fairness interests of the accused, as well as assessing the impact on the accused of waiting in jail and the delays to the trial. If the court attaches what the hospital considers to be unreasonable conditions to a treatment order, the hospital may exercise its statutory right of appeal, and benefit from the automatic stay.
The Court of Appeal was correct in deciding that the “forthwith” order in this case should not have been issued; however, this is not because the trial judge lacked jurisdiction to issue a treatment order. Rather, the hearing judge’s decision regarding the timing of the treatment order was not reasonable.
Cases Cited
By Rothstein and Cromwell JJ.
Referred to: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625; Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326.
By Karakatsanis J.
Referred to: R. v. R.R., 2006 ONCJ 141 (CanLII); R. v. Consuelo, Ont. Ct. J., Toronto, Nos. 10‑10001715, 10‑10004017, 10‑70009469, September 14, 2010 (unreported); R. v. Procope, Ont. Ct. J., Toronto, Nos. 10009107, 1200160, October 6, 2010 (unreported); Centre for Addiction and Mental Health v. Al‑Sherewadi, 2011 ONSC 2272, [2011] O.J. No. 1755 (QL); Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326; Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 7 .
Criminal Code, R.S.C. 1985, c. C‑46 , Part XX.1, ss. 672, 672.1 “disposition”, 672.11, 672.12, 672.13(1), 672.14, 672.23, 672.29, 672.46, 672.5(2), 672.54, 672.58, 672.59, 672.6, 672.61, 672.62, 672.63, 672.72, 672.75, 672.93.
Authors Cited
Canada. House of Commons. House of Commons Debates, vol. 3, 3rd Sess., 34th Parl., October 4, 1991, pp. 3297‑98.
Canada. House of Commons. Standing Committee on Public Safety and National Security. Mental Health and Drug and Alcohol Addiction in the Federal Correctional System: Report of the Standing Committee on Public Safety and National Security, 3rd Sess., 40th Parl., December 2010.
Centre for Addiction and Mental Health. “Statement of Principles and Practices for Admission Prioritization”, October 2010.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.
APPEAL from a judgment of the Ontario Court of Appeal (Simmons, Blair and Hoy JJ.A.), 2012 ONCA 342, 111 O.R. (3d) 19, 259 C.R.R. (2d) 286, 292 O.A.C. 20, 94 C.R. (6th) 405, 284 C.C.C. (3d) 359, [2012] O.J. No. 2253 (QL), 2012 CarswellOnt 6369, setting aside a treatment disposition of Hogan J. Appeal dismissed.
Frank Addario and Paul Burstein, for the appellant.
Riun Shandler, Grace Choi and Dena Bonnet, for the respondent Her Majesty The Queen.
Jonathan C. Lisus, Eric R. Hoaken and Ian C. Matthews, for the respondent the Person in Charge of the Centre for Addiction and Mental Health.
James P. Thomson and Janice E. Blackburn, for the respondent the Person in Charge of the Mental Health Centre Penetanguishene.
Richard Kramer and Ginette Gobeil, for the intervener the Attorney General of Canada.
Dominique A. Jobin and Caroline Renaud, for the intervener the Attorney General of Quebec.
Jill R. Presser and Anita Szigeti, for the intervener the Criminal Lawyers’ Association of Ontario.
Suzan E. Fraser and Mercedes Perez, for the intervener the Mental Health Legal Committee.
The judgment of LeBel, Abella, Rothstein, Cromwell and Gascon JJ. was delivered by
Rothstein and Cromwell JJ. —
I. Introduction
[1] When an accused person has been found unfit to stand trial and the other statutory requirements have been met, the court may make a disposition order directing that treatment be carried out for a specified period not exceeding 60 days and on such conditions as the judge considers appropriate for the purpose of making the accused fit to stand trial. The disposition order may not be made, however, without the consent of either the person in charge of the hospital where the accused is to be treated or the person to whom responsibility for the treatment of the accused has been assigned. (For ease of reference, we will refer to this as the hospital’s consent.)
[2] The main issue on appeal is whether, as the appellant contends, the court may make a disposition order directing that treatment begin immediately even though the hospital or treating physician does not consent to that disposition. In our view, the answer to this question is “no” in all but the rare case in which a delay in treatment would breach the accused’s rights under the Canadian Charter of Rights and Freedoms , and an order for immediate treatment is an appropriate and just remedy for that breach.
[3] Thus, while we would dismiss the appeal, we respectfully disagree with our colleague Karakatsanis J. that the hospital’s consent relates only to the treatment ordered in the disposition and not to the disposition order itself. As we see it, that reading of the relevant provisions of the Criminal Code, R.S.C. 1985, c. C-46 , cannot be reconciled with its unambiguous text. The Code specifically distinguishes between consent to treatment and consent to the disposition and explicitly requires that a disposition may not be made without the hospital’s consent. The hospital consent is required for the disposition order in its entirety, not simply to the treatment aspect of it. Read any other way, the appeal provisions relating to dispositions are incoherent. Moreover, the interpretation that we favour is consistent with the purpose of the scheme and the broader context in which it exists.
[4] The specific provisions of the Criminal Code dealing with UST accused that are relevant to this appeal are ss. 672.58 and 672.62 . As we shall see, these provisions make clear that while the court may not make a disposition — which may include not only the treatment, but also the period of treatment and other conditions which the court considers appropriate — without the hospital’s consent, the accused’s consent is dispensed with in relation only to the treatment to “be carried out pursuant to a disposition”.
672.58 [Treatment disposition] Where a verdict of unfit to stand trial is rendered and the court has not made a disposition under section 672.54 in respect of an accused, the court may, on application by the prosecutor, by order, direct that treatment of the accused be carried out for a specified period not exceeding sixty days, subject to such conditions as the court considers appropriate and, where the accused is not detained in custody, direct that the accused submit to that treatment by the person or at the hospital specified.
672.62 (1) [Consent of hospital required for treatment] No court shall make a disposition under section 672.58 without the consent of
(a) the person in charge of the hospital where the accused is to be treated; or
(b) the person to whom responsibility for the treatment of the accused is assigned by the court.
(2) [Consent of accused not required for treatment] The court may direct that treatment of an accused be carried out pursuant to a disposition made under section 672.58 without the consent of the accused . . . .
Other relevant provisions referred to in these reasons are set out in the Appendix.
II. Facts, Proceedings and Issues
[5] The appellant was charged with sexual assault. When he appeared in court, he was in a psychotic state and was declared unfit to stand trial (“UST”). Crown counsel recommended a treatment order. When asked about security concerns, a psychiatrist testified that treatment at Oak Ridge, a facility at the Mental Health Centre Penetanguishene (“MHCP”), would make more sense than the Centre for Addiction and Mental Health (“CAMH”), another hospital with which he had experience. The Crown stated that a bed would be available at Oak Ridge no later than the 19th of April which was six days after the date of the hearing. The hearing judge, Hogan J., issued a “forthwith” treatment order pursuant to s. 672.58 of the Criminal Code directing that the appellant shall be treated at “CAMH or designate (preferably Oakridge [sic]”, he shall remain in custody at “CAMH or designate”, and he shall “be taken directly from court to the designated hospital and from hospital directly back to court” and not to “a jail or correctional facility under any circumstances” (A.R., vol. I, at p. 2).
[6] Reasons for judgment were not issued but during the proceedings, the hearing judge said:
When I made a determination that as of today this individual needs to have a treatment order[,] I have based that on expert psychiatric opinion. I would be negligent and derelict in my duty and my responsibilities [i]f I were to say, well it is okay, he has — you know he is the subject of a treatment order which I consider to be an extreme measure . . . .
. . .
. . . I make orders that people [are] against sometimes, not always, but essentially against their will have drugs administered to them. That is extraordinarily serious and we do that because we feel it is absolutely necessary and that means now, not a week from now and I understand that, as I said, and I do not do it lightly when I do things like this, but I understand it does create disruption. But, you know, it would probably be better if he is in a bed in the hall of a psychiatric hospital than if he is in the medical unit not getting what I have been told is absolutely necessary treatment for, you know, a week.
. . .
. . . if it is okay to have him wait a week then we should not be asking for treatment orders today and I should not be making them; it is not okay.
. . .
. . . if we are prepared to do something as serious as make treatment orders and then say, but it is okay they can sit in a jail bed. That is not appropriate. We have a mental health system here that is supposed to treat people and you know ordering treatment orders is one of the most serious things we can do in terms of the mental health system and yet we cannot seem to provide a bed for them to get treated in and that is totally unacceptable. And I understand the argument but it is not an argument that carries any weight with me . . . .
. . .
. . . I am prepared to be flexible where he goes as long as it is a hospital. I know Oak Ridge is preferable but in these circumstances I can be flexible about that.
. . . so if I say CAMH or designate; I will ask that the order say preferably Oak Ridge, but I think getting him to a hospital at least, initially, is probably the most important thing . . . . [A.R., vol. I, at pp. 7-11]
[7] Court services delivered the appellant to the Mental Health Centre Penetanguishene and left him in a hallway.
[8] The respondent hospitals appealed the timing aspect of the disposition under s. 672.72(1) which provides for appeals “against a disposition . . . by a court”. (We note that if the appellant is right that a “disposition” does not include timing, there would be no right of appeal of the timing aspect of the disposition order under this provision. No one has ever taken this position.) Notwithstanding that the appellant thereafter was treated, eventually returned to court, and the charge was stayed by the time the appeal began, the Court of Appeal proceeded to determine that ss. 672.58 and 672.62(1) (a) of the Criminal Code engage the rights to liberty and security of the person guaranteed under s. 7 of the Charter , but do not violate principles of fundamental justice.
[9] The Court of Appeal held that Hogan J. erred by acting on the basis that the consent requirement had been satisfied. It held that there was never any doubt that CAMH or its designate, MHCP, would admit the appellant. It noted that a memorandum of understanding between CAMH and 102 Mental Health Court provided a form of general consent to the placement and treatment of accused persons. It held that this memorandum implicitly provided that hospitals would have the necessary facilities, personnel, and resources for effective and safe treatment. It held that this implied that admission would be withheld when a bed was not available for safety reasons. It held that consent to treat a patient when a bed becomes available is not consent to accept a patient forthwith.
[10] The Court of Appeal accepted that a mentally unfit accused person’s right to liberty and security of the person is engaged but that the consent requirement in s. 672.62(1) (a) does not violate the principle of fundamental justice requiring procedural fairness because the consent requirement responds to a general reluctance in law to compel a medical practitioner or hospital authorities to administer treatment; it responds to the common law’s unwillingness to compel someone to submit involuntarily to medical treatment by assuring that “the treatment order process is initiated and . . . likely to produce positive results” (para. 52); it responds to the significant risks to patients and to medical personnel, hospital staff and others when potentially violent psychotic patients are detained in settings where proper facilities are not available; and it permits Ontario’s forensic psychiatric facilities to co-operate in triaging the needs of UST and NCR accused, matters not within the knowledge of the courts. The Court of Appeal concluded that it is not unreasonable that a UST accused may have to wait on some occasions for a short period of time until a bed becomes available in a designated psychiatric facility and there was no evidence that a six-day delay in starting treatment might impair the likelihood of the appellant becoming fit to stand trial.
[11] The Court of Appeal also held that s. 672.62(1) (a) is not void for vagueness or arbitrariness.
[12] On the further appeal to this Court, the appellant raises two main questions concerning the scope of the hospital’s required consent:
1. Does the consent requirement relate to the timing of carrying out the order or just to the treatment itself?
2. If the consent requirement relates to the timing of carrying out the order, does the s. 672.58 order violate s. 7 of the Charter ?
III. Analysis
A. Does the Consent Requirement Relate to Timing?
(1) The Approach to Statutory Interpretation
[13] In our view, the meaning of the relevant provisions, supported by an understanding of their full context, leads to the conclusion that the hospital or person in charge of treatment must consent to all the terms of a disposition ordering treatment and, if there is no consent, the order cannot be made. The terms of the order include when it is to be carried out and therefore consent relates to timing.
[14] This issue raises a question of statutory interpretation which must be resolved according to the modern principle of statutory interpretation: “the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 1, citing E. A. Driedger, The Construction of Statutes (1974), at p. 67). We underline that the starting point is the text of the provisions in their grammatical and ordinary sense. This is especially the case where, as here, the key term “disposition” is expressly defined in the statute. In our view, the appellant fails to do this.
(2) Statutory Context and Statutory Text
[15] It is helpful to begin by putting the most relevant provisions in their wider statutory context. The relevant provisions are found within Part XX.1 of the Code which deals with mental disorder. The twin purposes of this Part of the Code are protection of the public and fair treatment, in the sense of procedural fairness, of the accused: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at paras. 20, 21 and 44; see also Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 27.
[16] The Code provides that no court shall make a “disposition” under s. 672.58 without the consent of the hospital or person in charge of treatment. The provisions respecting “dispositions” are central to the legislative scheme set out in Part XX.1 of the Code. Several provisions give both a court and a Review Board the authority to make various dispositions in relation to persons falling within the ambit of Part XX.1. Under the scheme, courts reach a “verdict” (respecting fitness to stand trial and criminal responsibility), both courts and Review Boards make a “disposition” (in relation to persons found UST and not criminally responsible) and Review Boards make a “placement decision” (with respect to a “dual status offender”, that is, a person who is both serving a sentence of imprisonment and is subject to a custodial disposition under Part XX.1).
[17] The key point is that “disposition” is a technical term, used throughout Part XX.1. While a disposition ordering treatment may be referred to as a “treatment order” in colloquial language, there is no such thing provided for in the Code. “Disposition” is a defined term. In the context of dispositions made by courts, a “disposition” is defined by s. 672.1 as meaning “an order made by a court” under s. 672.54 or s. 672.58 , the latter being the provision that concerns us here.
[18] As s. 672.58 makes clear, a “disposition” ordering treatment under that section necessarily includes aspects relating to timing: it must set out a “specified period not exceeding sixty days” and it may be made “subject to such conditions as the court considers appropriate”, including presumably conditions related to timing. Moreover, a disposition comes into force on the day on which it is made or on any later day that the court specifies: s. 672.63.
[19] All of this makes it clear that a “disposition” under s. 672.58 necessarily has a temporal aspect both as to its beginning and its ending and may include other conditions that the court considers it appropriate to impose.
[20] The Code provides that “[n]o court shall make a disposition under section 672.58 without the consent of (a) the person in charge of the hospital where the accused is to be treated; or (b) the person to whom responsibility for the treatment of the accused is assigned by the court”: s. 672.62. At paragraph 109, our colleague suggests that s. 672.62 provides for hospital consent with respect to only the “treatment” aspect of the disposition, and not the “disposition” generally. With respect, this is not how we read s. 672.62. If “[n]o court shall make a disposition . . . without . . . consent”, then the consent relates to the disposition. Further, as just discussed, a “disposition under section 672.58” necessarily has a temporal element. The hospital must consent to the “disposition”; there is nothing in the text to suggest that this requirement should be given anything other than its defined meaning in the Code. Consent is required to a “disposition” and “disposition” is defined to mean “an order made by a court under section 672.58”: s. 672.1. Thus the hospital’s consent is required to the disposition which the court makes under s. 672.58, not simply to certain aspects of it.
[21] This conclusion is supported by the meaning of the word “consent” and the context in which it is used in these provisions.
[22] The ordinary meaning of the word “consent” in the context of medical treatment is understood to be voluntary agreement to a medical course of action made with an appreciation of all material information and risks. The starting date of treatment is a material fact, going to the availability of the necessary bed and staff ready to execute the treatment order safely.
[23] The context in which the word “consent” is used in this scheme supports this broad understanding of the term. Where the Code intends to differentiate between consent to treatment and consent to a disposition order, it does so expressly. For example, in s. 672.62 , subsection 1 deals with the hospital’s consent to “a disposition” whereas subsection 2 deals with the accused’s consent to “treatment . . . pursuant to a disposition”. Had the intention been to simply require the hospital’s consent to the proposed treatment, language similar to that used in subsection 2, which links consent only to the treatment, could have made that intent clear. Instead, subsection 1 links the hospital’s consent to the “disposition” not merely to the “treatment of an accused . . . carried out pursuant to a disposition” as in subsection 2. This demonstrates that Parliament, which took care to define the term “disposition”, used the term in its defined sense — as it did in relation to hospital consent under s. 672.62(1) — and used different language to refer only to the treatment component of a disposition — as it did in relation to the accused’s consent in s. 672.62(2).
[24] Given that “disposition” is a defined term meaning the “order made by a court under section 672.58” and the Code explicitly requires the hospital’s consent to a disposition under that section, we see no possible ambiguity in the text of these provisions. Any possible doubt is dispelled by the clear distinction in s. 672.62 between, on the one hand, the hospital’s consent to the “disposition” which is required under s. 672.62(1) and, on the other hand, the accused’s consent to “treatment . . . carried out pursuant to a disposition” which is not required. We do not see how Parliament could have more clearly expressed its intent that the hospital’s consent in s. 672.62(1) relates to all the provisions of the disposition, including when treatment will begin as well as what is to be done.
[25] Our colleague Karakatsanis J. reads the appeal provisions in Part XX.1 as supporting the appellant’s view that consent to a disposition order does not require consent to the timing aspects of the disposition order. We respectfully disagree. As we see it, the interpretation that we propose is reinforced, not weakened, by the appeal provisions in Part XX.1. Under s. 672.72(1), “[a]ny party may appeal against a disposition made by a court . . . on any ground of appeal that raises a question of law or fact alone or of mixed law and fact.” This, of course, is the provision that allowed the hospital in this case to appeal the judge’s “forthwith” disposition order. However, the appellant contends that the “disposition” under s. 672.58 does not include the timing of the treatment which is ordered. It follows that, on the appellant’s reading of the Code, the term “disposition” means something different in ss. 672.58 and 672.62 than it does in s. 672.72. If, as the appellant contends, consent to a “disposition” as required by s. 672.62 does not require consent as to timing of treatment, it must follow that an appeal under s. 672.72 from a “disposition” cannot relate to the timing of the treatment either. Respectfully, this simply cannot be the case. “Disposition” is a defined term: it means an “order made by a court under section 672.58”. The term “disposition” must bear this meaning everywhere it is used in Part XX.1 of the Code. The appellant offers no explanation as to why the express definition of the term applies in the appeal provisions but not in the treatment disposition provisions even though both the consent requirement and the right of appeal relate to a disposition under s. 672.58.
[26] We also, respectfully, cannot agree that if the hospital’s consent were required to the timing aspect of a disposition, there would be no point in providing the hospital with a right of appeal as it could simply refuse to consent. This case shows that this line of argument is incorrect. The appeal process under Part XX.1 permitted the judge’s forthwith order in this case to be appealed and her legal error in making it to be corrected on appeal.
[27] The appellant argues that consent in relation to a s. 672.58 disposition order must not include timing because the institutions do not have any right to refuse to accept immediately patients on other court-ordered placements as, for example, under s. 672.11 (psychiatric assessments) and s. 672.54(c) and s. 672.46(2) (transfers to a psychiatric institution or to a hospital). In effect, the appellant urges us to infer from the fact that hospital consent to timing is not required in these situations that it similarly should not be required under s. 672.62. We cannot agree.
[28] Section 672.58 is unique in that it requires an accused to be subject to treatment and authorizes medical personnel to administer it without the accused’s consent. The section is not concerned simply with admission but with treatment upon admission. Thus, the provision deals with distinct situations and this argues against drawing any inference from distinct and different provisions about the meaning of this one. Moreover, any potential inference that might otherwise be drawn from the absence of a consent requirement in these other provisions is negated by the language in s. 672.62. It expressly makes the hospital’s consent relate to the disposition order itself, not simply to the treatment to be carried out pursuant to it.
(3) The Broader Context
[29] The interpretation that we arrive at looking at the text of the provisions in their statutory context is reinforced by other, broader contextual considerations. We will refer to the purpose of the scheme and the artificiality of separating “treatment” from “timing” in this context.
[30] We agree with the respondent Attorney General of Ontario that the purposes of this scheme point to a broad understanding of the requirement for hospital consent.
[31] An order under s. 672.58 is extraordinary in at least two respects. First, it directs that treatment of an accused be carried out without the accused’s consent. The exceptional nature of this power was noted by the then Justice Minister Kim Campbell when she introduced the legislation in 1991:
At present, there is no power to order a person detained pursuant to a Lieutenant-Governor’s warrant to submit to treatment involuntarily. Apart from emergency, there is no power to treat an accused without obtaining consent. We have concluded that the general rule preventing the involuntary treatment of mentally disordered accused ought to be preserved. However, subject to stringent safeguards, the bill permits a court to order involuntary treatment to make the accused fit to stand trial, thereby avoiding a potentially lengthy period of detention. [Emphasis added.]
(House of Commons Debates, vol. 3, 3rd Sess., 34th Parl., October 4, 1991, at pp. 3297-98)
[32] The Code establishes a number of special protections that highlight the unusual nature of this power. As provided for in s. 672.59, the order may only be made if the court is satisfied on the basis of testimony from a medical practitioner that a specific treatment should be administered for the purpose of making the accused fit to stand trial. That testimony must fulfill the detailed criteria set out in s. 672.59(2), including that the treatment is the least restrictive and least intrusive that could be specified for the purpose and that the risk of harm to the accused is not disproportionate to its anticipated benefit. The accused has important procedural rights including notice, and the right to challenge the application and certain treatments including the performance of psychosurgery or electro-convulsive therapy are not permitted: ss. 672.6 and 672.61.
[33] Second, by necessary implication, it authorizes medical personnel to carry out that treatment against the accused’s wishes. This is a remarkable provision, given that informed consent of the patient is generally the sine qua non of medical treatment. However, s. 672.62, by requiring consent of the hospital or the person responsible for the accused’s treatment, makes it clear that this provision does not oblige them to carry out the court’s disposition order without their consent. As the Court noted in Mazzei, doing so “would constitute interference with the authority and responsibility of hospital authorities to provide medical